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Performing an ongoing role on a project is not employment for a specified task

A Full Bench of the Fair Work Commission in Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922 has clarified the meaning of “specified task” in the context of an unfair dismissal application.

Implications for employers

The specified task exclusion will be interpreted narrowly. A specified task must be distinct and identifiable in its own right. An ongoing role on an employer’s project more generally will not be a specified task.

It is likely that an employment contract will not be one for a specified task if it gives either party an unqualified right to terminate on notice.

Employment contracts may be drafted so that they end automatically upon the happening of a triggering event (regardless of whether there is a specified task).

Background

Hatch Pty Ltd (Hatch) had a contract with Anglo American Metallurgical Coal (AAMC) to provide services in relation to AAMC’s Grosvenor Project. Hatch employed Ms Dale on a fixed term basis to provide support on the Grosvenor Project in the position of Site and Facilities Administration Lead. The contract expressly stated that her employment would end automatically upon her demobilisation from the Grosvenor Project.

Decision at first instance

Ms Dale made an unfair dismissal claim. Hatch argued the Commission had no jurisdiction to hear the claim because Ms Dale was not dismissed. Under the Fair Work Act 2009 (Cth), a person is not dismissed if the person was employed under a contract of employment for a specified task and the employment terminated on completion of the task. The Commission determined that Ms Dale had been employed for a specified task, namely, that of “carrying out the administration role of Site and Facilities Administrator Lead on the Grosvenor Project”. The Commission found that Ms Dale was not dismissed because her employment ended upon completion of the specified task, namely, demobilisation from the Grosvenor Project. Ms Dale’s application was dismissed.

Full Bench decision

Ms Dale appealed. The Full Bench took a different view as to the meaning of “specified task”, finding that the phrase should be interpreted narrowly. The Full Bench distinguished a “task” from a “role”. A task should be distinct and identifiable in its own right and will end when the employee finishes the work involved in it. Identification of when the task is completed should be clear and predictable. By comparison, a “role” involves a collection of duties performed on an ongoing basis.

The Full Bench found that Ms Dale was not performing a discrete task, but was performing an administrative role on a project. Under the contract, the employment was to end when her services were no longer required. As a result, she was not employed for a specified task. The parties had accepted that Ms Dale was dismissed in the event of a finding that she was not employed for a specified task, which meant that she was able to make an unfair dismissal claim.

The Full Bench noted that, having regard to the terms of the contract, it might have been open to Hatch to argue that the contract had ended according to its terms (but it was not required to consider this argument). Further, without deciding the point, the Full Bench expressed the view that an unqualified right to terminate employment prior to the completion of the task would preclude a contract from falling within the specified task exclusion (as in the case of contracts for a specified period of time).